Filed 6/14/22 Weischadle v. City of L.A. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GLORIA WEISCHADLE,

Plaintiff and Appellant, 

v.

CITY OF LOS ANGELES et al.,

Defendants and Respondents.

 B310430

 (Los Angeles County

 Super. Ct. No. 

20STCV17245) 

APPEALS from orders, judgment and postjudgment order

of the Superior Court of Los Angeles County, Yolanda Orozco, 

Judge. Affirmed.

 Gloria Weischadle, in pro. per., for Plaintiff and Appellant.

Vanderford & Ruiz, Rodolfo F. Ruiz and John R. Meehan 

for Defendants and Respondents City of Los Angeles.

Kaufman, Dolowich Voluck, Andrew J. Waxler and John T. 

Lupton for Defendants and Respondents Robert Charboneau and 

Law Offices of Robert Charboneau. 

_____________________
2

After an unsuccessful premises liability action against the 

City of Los Angeles, Gloria Weischadle sued the City and its 

counsel, Robert Charboneau and the Law Offices of Robert 

Charboneau, alleging they had engaged in fraud, evidence 

suppression and other discovery-related misconduct that left her 

unable to prove her case. The City and the Charboneau 

defendants filed special motions to strike, asserting each claim in 

Weischadle’s complaint arose out of protected activity within the 

meaning of Code of Civil Procedure section 425.161and lacked 

even minimal merit. The trial court granted the special motions 

to strike and the related motions for attorney fees. 

On appeal2 Weischadle contends the trial court erred in 

finding her claims were subject to a special motion to strike 

because they did not arise from protected activity in connection 

with a public issue and she alleged illegal activity not subject to 

the protections of section 425.16. She also contends she 

1

Statutory references are to this code unless otherwise 

stated.

2 Weischadle filed timely notices of appeal from the 

November 10, 2020 orders granting the special motions to strike 

(case no. B310430). On March 15, 2021 Weischadle also filed a 

timely notice of appeal from the March 4, 2021 postjudgment

order granting the Charboneau defendants’ motion for attorney 

fees (after entry of judgment dismissing Weischadle’s action 

against them) and a premature notice of appeal from the court’s 

February 17, 2021 prejudgment order granting the City’s 

attorney fee motion (case no. B311808). We deem the premature 

notice of appeal to be a timely appeal from the March 24, 2021

judgment entered dismissing Weischadle’s action against the City 

and awarding the City its attorney fees (Cal. Rules of Court, 

rule 8.104(d)). We ordered the appeals consolidated.
3

demonstrated her claims had minimal merit. Because the orders 

granting the special motions to strike were erroneous, she argues, 

so too were the court’s attorney fee orders. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Weischadle’s Premises Liability Action Against the City

Weischadle fell on an escalator at Los Angeles 

International Airport in September 2015 and sued the City 

(named in the lawsuit as Los Angeles World Airports (LAWA), a 

City department) for premises liability. During most of the trial

Weischadle represented herself; the Charboneau defendants 

represented the City. After Weischadle failed to present any 

admissible evidence to support her claim of dangerous condition 

of public property, the trial court granted the City’s motion for 

nonsuit. Weischadle moved for a new trial, arguing the court had 

erred in sustaining the City’s objections to her proposed evidence

on hearsay grounds and excluding it. She also argued the City 

had failed to produce critical evidence she had requested during 

discovery, such as surveillance video footage depicting the 

accident and the identities of, and contact information for, two 

employees of the Transportation Security Administration (TSA) 

who had witnessed the accident. The court denied Weischadle’s 

new trial motion and entered judgment in favor of the City. 

Our colleagues in Division Four of this court affirmed the 

judgment on appeal, rejecting Weischadle’s argument the City 

had interfered with her ability to present witnesses at trial. 

(Weischadle v. Los Angeles World Airports (Oct. 28, 2019, 

B294949 [nonpub. opn.].) As to Weischadle’s claims of discovery 

misconduct, the court stated, “It is unclear from this record 

whether [Weischadle’s] claim of discovery misconduct was fully 

litigated below, nor has she demonstrated how any of LAWA’s 
4

asserted objections were deficient. Indeed, the partial set of 

discovery requests and responses in the [limited] record before us 

demonstrates that LAWA did in fact substantively respond to 

some of Weischadle’s requests, contrary to her claim. ‘Failure to 

provide an adequate record on an issue requires that the issue be 

resolved against [appellant].’” (Weischadle v. Los Angeles World 

Airports, supra, B294949.) 

2. Weischadle’s Fraud Action Against the City and the

Charboneau Defendants

Weischadle filed the case at bar in May 2020 purporting to 

allege 11 causes of action: fraud, evidence tampering, witness 

tampering, conspiracy, conspiracy in concert, aiding and abetting,

defamation, false representation, intentional infliction of 

emotional, physical and mental distress, gross negligence and 

breach of fiduciary duty.3 Each cause of action was based on the 

same facts: Weischadle had requested information and evidence 

from the City during discovery in the premises liability action;

the City and the Charboneau defendants responded either with 

improper objections or false assertions that the City did not 

possess the evidence requested; the City and the Charboneau 

defendants interfered with, withheld or destroyed the evidence; 

3 Weischadle filed an earlier lawsuit against the Charboneau 

defendants alleging substantially similar claims, but voluntarily 

dismissed that suit after the superior court issued a tentative 

ruling granting the Charboneau defendants’ special motion to 

strike. The court awarded the Charboneau defendants attorney 

fees as the prevailing parties on the motion notwithstanding 

Weischadle’s voluntary dismissal of her complaint. We affirmed 

that order. (Weischadle v. Charboneau (May 20, 2021, B304032) 

[nonpub. opn.].)
5

and as a result of the City’s and the Charboneau defendants’ false 

statements and litigation misconduct in the premises liability 

action, she had been unable to prove her case at trial and 

suffered additional harm to her emotional and physical wellbeing and her reputation.4

3. The City’s and the Charboneau Defendants’ Special 

Motions To Strike

a. The moving papers

The City and the Charboneau defendants filed special 

motions to strike Weischadle’s complaint pursuant to 

section 425.16, arguing each claim was based on oral or written 

statements offered during, or in connection with, a judicial 

proceeding, protected activity within the meaning of 

section 425.16, subdivision (e)(1) or (2), and lacked minimal 

merit. In a declaration submitted in support of both motions,

4

In support of her claims Weischadle alleged the City and 

the Charboneau defendants engaged in the following actions 

during the premises liability lawsuit: Provided false responses 

and made improper objections to her written discovery requests; 

bullied, mocked and accused her of lying about the accident to 

obtain an undeserved monetary recovery; altered or directed the 

alteration of the court reporter’s transcript of proceedings to 

remove the bullying statements; suppressed or intentionally 

destroyed the surveillance footage of the accident; replaced

identifying escalator tags at the airport to confuse Weischadle 

and make it appear she was lying about the escalator on which 

she fell; and failed to make defense witnesses available on the 

first day of trial, leaving Weischadle unable to authenticate 

evidence she needed in her case-in-chief. As a result of all this 

litigation misconduct, Weischadle alleged, she lost the premises 

liability action. 
6

Robert Charboneau stated Weischadle had informally asked him 

early in the litigation for the identities of two TSA agents who 

had witnessed the accident. After consulting with his client, 

Charboneau learned the City did not possess on-duty information 

about the TSA employees, who are federal agents. He reported 

this to Weischadle and suggested she contact TSA directly. In 

response to Weischadle’s request for surveillance footage of the 

incident, Charboneau told Weischadle surveillance footage, which

otherwise would have been preserved, had been recorded over as 

a matter of airport policy when Weischadle, who had not wanted 

to miss her flight, did not report the accident to LAWA in a 

timely fashion. Weischadle served formal written discovery 

seeking the same information and filed two ex parte motions 

challenging the City’s responses, which were consistent with 

Charboneau’s informal statements to Weischadle. The trial court 

denied both ex parte requests for lack of emergency and invited 

her to file a noticed motion. She never did. 

b. Weischadle’s opposition

In her opposition papers Weischadle argued section 425.16

did not apply because her complaint alleged causes of action that 

arose from the City’s and the Charboneau defendants’ illegal 

conduct during the premises liability action and involved a 

private, not a public, issue. 

Weischadle also argued her claims had at least minimal 

merit. In a declaration submitted with her opposition papers, 

Weischadle stated the City and the Charboneau defendants had 

lied to her when they claimed they did not know the identities of 

the TSA witnesses. Citing exhibit 25 to her declaration, which 

appears to be a July 7, 2018 email from the TSA Contact Center

stating, “After careful review, we have determined that your 
7

inquiry falls outside TSA’s jurisdiction,” Weischadle argued the 

City, not TSA, was responsible for providing the requested 

information. (Exhibit 25, which was excluded from evidence at 

the hearing on the special motion to strike for lack of 

authentication, did not identify the nature of Weischadle’s 

inquiry.) 

In addition, Weischadle asserted, as she had in the earlier 

premises liability action, the City and the Charboneau 

defendants had tampered with evidence by intentionally 

withholding from trial or destroying surveillance camera footage

to undermine her ability to prove her case; removing or obtaining 

the removal from the reporters’ transcript of bullying comments 

made to her during her deposition or in court; and failing to 

voluntarily make defense witnesses available the first day of trial

after it became clear she could not authenticate the evidence she 

wanted to introduce in her case-in-chief. 

Weischadle also submitted with her opposition papers 

many of the same exhibits she had sought unsuccessfully to 

introduce at trial in the premises liability action. Weischadle 

argued those exhibits demonstrated the City had known of the 

dangerous condition of the airport escalators caused by power 

surges and had tampered with evidence by replacing airport 

escalator identification tags with different identification tags to

confuse Weischadle and make it appear Weischadle had fallen on 

a different escalator. 
8

c. The City’s and the Charboneau defendants’ 

objections; Weischadle’s response 

The City and the Charboneau defendants objected to all of 

Weischadle’s exhibits for lack of authentication, among other 

grounds. Responding to the authentication objections only, 

Weischadle stated in a supplemental declaration she would 

authenticate the exhibits “during the discovery process of the 

litigation.” 

d. The trial court’s ruling on objections and order 

granting the special motions to strike

The court sustained the Charboneau defendants’ objections 

to all of Weischadle’s exhibits for lack of authentication and 

excluded them. The court sustained the City’s objection on 

authentication grounds to Weischadle’s exhibit 38, her alleged 

notice of tort claim, and otherwise declined to rule on the 

remainder of the City’s objections, explaining they were not 

material to the court’s disposition of the City’s motion. 

After ruling on the defendants’ objections, the court 

granted both special motions to strike. The court concluded every

cause of action against both the Charboneau defendants and the 

City arose from protected activity pursuant to section 425.16, 

subdivision (e)(1) and (2), and Weischadle had failed to 

demonstrate her claims had minimal merit. In particular, the 

court ruled the protected activities Weischadle had asserted

against the Charboneau defendants—statements made by Robert 

Charboneau during discovery and at trial in the prior premises 

liability action—were absolutely privileged pursuant to Civil 

Code section 47, subdivision (b), and Weischadle had presented 

no admissible evidence suggesting the Charboneau defendants 
9

had destroyed or altered evidence so as to come within an 

exception to that privilege. 

As to Weischadle’s claims against the City, the court ruled 

Weischadle provided no admissible evidence she had filed a 

government claim, a necessary prerequisite to her lawsuit 

against the City. Alternatively, even if her exhibit 38 “notice of 

claim” were admissible and sufficient to constitute a proper 

government claim, the court ruled the City was immune from 

liability absent an authorizing statute, and Weischadle had cited 

none. Weischadle’s citation to Government Code section 835 

(liability for dangerous condition of property) did not assist her, 

the court ruled, because that claim, already litigated and decided, 

was barred by the doctrine of res judicata/claim preclusion. 

4. The Motions for Costs and Attorney Fees

The City and the Charboneau defendants moved to recover 

their costs and attorney fees pursuant to section 425.16, 

subdivision (c). The court granted both motions, awarding the 

City $54,958.25 in attorney fees and costs and the Charboneau 

defendants $34,935.75 in attorney fees and costs. 

DISCUSSION

1. Governing Law and Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “A cause of action against 

a person arising from any act of that person in furtherance of a 

person’s right to free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue shall be subject to a special motion to strike unless,

the court determines that the plaintiff has established there is a 

probability that the plaintiff will prevail on the claim.” (§ 425.16, 
10

subd. (b)(1); see Rand Resources, LLC v. City of Carson (2019) 

6 Cal.5th 610, 619-620 [“[a] court may strike a cause of action 

only if the cause of action (1) arises from an act in furtherance of 

the right of petition or free speech ‘in connection with a public 

issue,’ and (2) the plaintiff has not established ‘a probability’ of 

prevailing on the claim”].) 

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ includes: (1) any written or oral statement or writing 

made before a legislative, executive, or judicial proceeding, or any 

other official proceeding authorized by law, (2) any written or oral 

statement or writing made in connection with an issue under 

consideration or review by a legislative, executive, or judicial 

body, or any other official proceeding authorized by law, (3) any 

written or oral statement or writing made in a place open to the 

public or a public forum in connection with an issue of public 

interest, or (4) any other conduct in furtherance of the exercise of 

the constitutional right of petition or the constitutional right of 

free speech in connection with a public issue or an issue of public 

interest.” 

In ruling on a motion under section 425.16, the trial court 

engages in a two-step process. “First, the defendant must 

establish that the challenged claim arises from activity protected 

by section 425.16. [Citation.] If the defendant makes the 

required showing, the burden shifts to the plaintiff to 

demonstrate the merit of the claim by establishing a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); 

accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 
11

1009 (Bonni); Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) 

As to the first step of the analysis, “[a] claim arises from 

protected activity when that activity underlies or forms the basis 

for the claim.” (Park, supra, 2 Cal.5th at pp. 1062-1063; accord, 

Bonni, supra, 11 Cal.5th at p. 1009.) Thus, “[t]he defendant’s 

first-step burden is to identify the activity each challenged claim 

rests on and demonstrate that that activity is protected by the 

anti-SLAPP statute. A ‘claim may be struck only if the speech or 

petitioning activity itself is the wrong complained of, and not just 

evidence of liability or a step leading to some different act for 

which liability is asserted.’” (Wilson v. Cable News Network, Inc. 

(2019) 7 Cal.5th 871, 884 (Wilson); see Bonni, at p. 1009 [“[t]he 

defendant’s burden is to identify what acts each challenged claim 

rests on and to show how those acts are protected under a 

statutorily defined category of protected activity”]; Park, at 

p. 1060 [same].) 

A motion pursuant to section 425.16 need not challenge an 

entire cause of action as pleaded in the complaint. (Bonni, supra, 

11 Cal.5th at p. 1010; Baral, supra, 1 Cal.5th at p. 382.) Rather, 

“courts should analyze each claim for relief—each act or set of 

acts supplying a basis for relief, of which there may be several in 

a single pleaded cause of action—to determine whether the acts 

are protected and, if so, whether the claim they give rise to has 

the requisite degree of merit to survive the motion.” (Bonni, at 

p. 1010; accord, Baral, at p. 395; Musero v. Creative Artists 

Agency, LLC (2021) 72 Cal.App.5th 802, 815; see Park, supra, 

2 Cal.5th at p. 1063 [in determining whether a claim arises from 

protected activity, “courts should consider the elements of the 
12

challenged claim and what actions by the defendant supply those 

elements and consequently form the basis for liability”].) 

“As to the second step inquiry, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’” (Sweetwater Union High School 

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;

5

accord, 

Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.) “‘We 

have described this second step as a “summary-judgment-like 

procedure.” [Citation.] The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to 

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. It accepts the plaintiff’s evidence as true, 

and evaluates the defendant’s showing only to determine if it 

defeats the plaintiff's claim as a matter of law.’” (Monster 

5 Although the Supreme Court in Sweetwater Union High 

School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931 

referred generally to “competent admissible evidence,” the Court 

held evidence that is potentially admissible at trial, but not 

presented in admissible form, could be considered in determining 

whether the plaintiff had demonstrated a probability of success 

on the merits: “[A]t the second stage of an anti-SLAPP hearing, 

the court may consider affidavits, declarations, and their 

equivalents if it is reasonably possible the proffered evidence set 

out in those statements will be admissible at trial. Conversely, if 

the evidence relied upon cannot be admitted at trial, because it is 

categorically barred or undisputed factual circumstances show 

inadmissibility, the court may not consider it in the face of an 

objection. If an evidentiary objection is made, the plaintiff may 

attempt to cure the asserted defect or demonstrate the defect is 

curable.” (Id. at p. 949.)
13

Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 714 

[the court should grant the section 425.16 motion “‘if, as a matter 

of law, the defendant’s evidence supporting the motion defeats 

the plaintiff’s attempt to establish evidentiary support for the 

claim’”].)

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.) 

2. Weischadle’s Claims Against the Charboneau 

Defendants and the City Arose from Protected Activity

The trial court ruled each of Weischadle’s claims against 

the Charboneau defendants and the City arose from oral and 

written statements made during the premises liability action, 

protected activity within the meaning of section 425.16, 

subdivision (e)(1) and (2). (See Bonni, supra, 11 Cal.5th at 

p. 1024 [“claims that arise out of the filing of a suit arise from 

protected activity for purposes of the anti-SLAPP statute”]; 

Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [anti-SLAPP 

statutes protects not only litigants, but also their attorneys’ 

litigation-related statements]; Contreras v. Dowling (2016) 

5 Cal.App.5th 394, 408-409 [“‘[u]nder the plain language of 

section 425.16, subdivision (e)(1) and (2), as well as the case law 

interpreting those provisions, all communicative acts performed 

by attorneys as part of their representation of a client in a 

judicial proceeding or other petitioning context are per se 

protected as petitioning activity by the anti-SLAPP statute’”]; 

Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 

238 Cal.App.4th 200, 210 (Finton Construction) [same].) 

That Weischadle alleged the communications were 

fraudulent did not remove them from the protection of the anti-
14

SLAPP statute. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 90 

[claim alleging fraud during lawsuit settlement negotiations was 

based on protected activity; because alleged fraudulent statement 

was made in connection with issue under consideration or review 

by a judicial body, it was protected activity within the meaning of 

section 425.16, subdivision (e)(1)]; Crossroads Investors, L.P. v. 

Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 779 

[party’s written discovery responses during bankruptcy litigation, 

including any omissions in its written responses, were protected 

activity within meaning of section 425.16]; Suarez v. Trigg 

Laboratories, Inc. (2016) 3 Cal.App.5th 118, 123 [claim of 

fraudulent concealment during settlement discussions was based 

on protected activity within meaning of section 425.16, 

subdivision (e)(1)].) 

Weischadle contends the court erred in granting the special 

motions to strike because her claims involve a private issue and 

alleged illegal activity, the same two arguments she made, and 

we rejected, in Weischadle v. Charboneau (May 20, 2021, 

B304032) [nonpub. opn.]. They fare no better here. 

Contrary to Weischadle’s contention, when, as here, the 

“defendant’s alleged acts fall under the first two prongs of 

section 425.16, subdivision (e) (speech or petitioning before a 

legislative, executive, judicial, or other official proceeding, or 

statements made in connection with an issue under review or 

consideration by an official body), the defendant is not required to 

independently demonstrate that the matter is a ‘public issue’ 

within the statute’s meaning.” (Consumer Justice Center v. 

Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 600; 

accord, Briggs v. Eden Council for Hope & Opportunity (1999) 

19 Cal.4th 1106, 1123.) 
15

Weischadle’s reliance on Flatley v. Mauro (2006) 39 Cal.4th 

299 to argue the anti-SLAPP statute does not apply because her 

complaint alleged illegal conduct—witness and evidence 

tampering by the City and the Charboneau defendants in the 

premises liability action— is also without merit. The Flatley

Court held, if “the defendant concedes, or the evidence 

conclusively establishes, that the assertedly protected speech or 

petition activity was illegal as a matter of law, the defendant is 

precluded from using the anti-SLAPP statute to strike the 

plaintiff’s action.” (Id. at p. 320; accord, Seltzer v. Barnes (2010) 

182 Cal.App.4th 953, 965; see Gerbosi v. Gaims, Weil, West & 

Epstein, LLP (2011) 193 Cal.App.4th 435, 446 [“[w]e understand 

Flatley to stand for this proposition: when a defendant’s 

assertedly protected activity may or may not be criminal activity, 

the defendant may invoke the anti-SLAPP statute unless the 

activity is criminal as a matter of law”].) Here, the Charboneau 

defendants vigorously disputed the allegations of any illegal 

conduct and supplied evidence contradicting Weischadle’s 

declaration. When, as here, the conduct is neither conceded to be 

illegal nor is illegal as a matter of law, the allegations of illegality 

relate to the second prong of the anti-SLAPP analysis, not the 

first. (Flatley, at p. 316 [if “a factual dispute exists about the 

legitimacy of the defendant’s conduct, it cannot be resolved 

within the first step but must be raised by the plaintiff in 

connection with the plaintiff’s burden to show a probability of 

prevailing on the merits”]; Seltzer, at p. 965 [same].) 

Finally, Weischadle adds that “none of the documents” in 

this case was introduced in the prior premises liability action. 

We are uncertain as to which documents she refers or the 

significance of the fact they were excluded from evidence at the 
16

premises liability trial. Weischadle does not suggest the 

statements that form the bases of her claims were not made in 

connection with that action. In fact, her allegations are directly 

to the contrary. 

3. Weischadle Did Not Carry Her Burden To Demonstrate 

Her Claims against the Charboneau Defendants Had 

Minimal Merit 

Civil Code section 47, subdivision (b), bars all tort claims 

other than for malicious prosecution based on statements or other 

communications made in a judicial proceeding.6(Flatley v. 

Mauro, supra, 39 Cal.4th at p. 322; Hagberg v. California Federal 

Bank (2004) 32 Cal.4th 350, 360.) “The principal purpose of 

[Civil Code] section 47[, subdivision (b),] is to afford litigants . . . 

[citation] the utmost freedom of access to the courts without fear 

of being harassed subsequently by derivative tort actions.” 

(Silberg v. Anderson (1990) 50 Cal.3d 205, 213.) The privilege 

also “promotes the effectiveness of judicial proceedings by 

encouraging attorneys to zealously protect their clients’

interests.” (Id. at p. 214.) “Finally, in immunizing participants 

from liability for torts arising from communications made during 

judicial proceedings, the law places upon litigants the burden of 

exposing during trial the bias of witnesses and the falsity of 

evidence, thereby enhancing the finality of judgments and 

6 Civil Code section 47 provides in part: “A privileged 

publication or broadcast is one made: [¶] . . . [¶] (b) In any 

(1) legislative proceeding, (2) judicial proceeding, (3) in any other 

official proceeding authorized by law, or (4) in the initiation or 

course of any other proceeding authorized by law and reviewable 

pursuant to Chapter 2 (commencing with Section 1084) of Title 1 

of Part 3 of the Code of Civil Procedure, except as follows . . . .”
17

avoiding an unending roundelay of litigation, an evil far worse 

than an occasional unfair result.” (Ibid.; accord, Flatley, at 

p. 322.) “To further these purposes, the privilege has been 

broadly applied.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 

948, 955; see Rubin v. Green (1993) 4 Cal.4th 1187, 1193 

[“communications with ‘some relation’ to judicial proceedings” are 

“absolutely immune from tort liability”].)

“The usual formulation [of the litigation] privilege [is that] 

the privilege applies to any communication (1) made in judicial or 

quasi-judicial proceedings; (2) by litigants or other participants 

authorized by law; (3) to achieve the objects of the litigation; and 

(4) that have some connection or logical relation to the action.” 

(Silberg v. Anderson, supra, 50 Cal.3d at p. 212; see Adams v. 

Superior Court (1992) 2 Cal.App.4th 521, 529 [litigation privilege 

bars cause of action “provided that there is some reasonable 

connection between the act claimed to be privileged and the 

legitimate objects of the lawsuit in which that act took place”].) 

“The litigation privilege is absolute; it applies, if at all, regardless 

whether the communication was made with malice or the intent 

to harm.” “If there is no dispute as to the operative facts, the 

applicability of the litigation privilege is a question of law.

[Citation.] Any doubt about whether the privilege applies is 

resolved in favor of applying it.” (Kashian v. Harriman (2002) 

98 Cal.App.4th 892, 913; accord, Finton Construction, supra,

238 Cal.App.4th at p. 212.)

Weischadle contends the court erred in concluding all her 

claims were barred by the litigation privilege. Relying on Civil 

Code section 47, subdivision (b)(2), which excludes from the 

protection of the privilege “any communication made in 

furtherance of an act of intentional destruction undertaken for 
18

the purpose of depriving a party to litigation of the use of that 

evidence,” Weischadle asserts the Charboneau defendants

intentionally destroyed the surveillance footage. However, she 

provided no evidence to support that claim. At most, Weischadle 

posited the airport officials must have known about the accident 

because she reported it on the day it occurred to TSA personnel 

who took her name and telephone number. Accordingly, a trier of 

fact could infer the City’s explanation for failing to preserve the 

surveillance footage—that it did not know about the accident 

because she did not report it in a timely manner—was false. 

Even if that analysis permitted an inference of intentional 

spoliation of evidence by the City prior to trial, Weischadle 

submitted nothing to indicate the Charboneau defendants 

represented the City at the time the surveillance footage was lost, 

let alone knew about, advised or otherwise participated in the 

purported spoliation. Neither Weischadle’s allegations in her 

complaint nor the statements in her declaration, unsupported by 

personal knowledge, are sufficient to support an inference the 

Charboneau defendants engaged in any conduct that would come 

within the exception to the litigation privilege. (See Monster 

Energy Co. v. Schechter, supra, 7 Cal.5th at p. 795 [while we 

must resolve all conflicts and inferences with respect to the 

evidence in the anti-SLAPP context in favor of plaintiff, 

“speculative inferences not supported by the evidence proffered 

may not be considered”].)

4. Weischadle Failed To Demonstrate Her Claims Against 

the City Had Minimal Merit

Weischadle contends she demonstrated minimal merit as to 

her claims against the City, once again arguing that Civil Code 

section 47, subdivision (b)(2), prevents the City from claiming its 
19

intentional and bad faith spoliation of evidence, among other 

evidence tampering, was protected by the litigation privilege. 

However, the court did not rely on the litigation privilege to 

conclude Weischadle had not carried her burden. Rather, it 

found Weischadle had provided no admissible evidence she 

submitted a government claim, a necessary prerequisite for a tort 

claim against the City. (See Gov. Code, § 945.4; Rubenstein v. 

Doe No. 1 (2017) 3 Cal.5th 903, 906 [“[c]ompliance with the claim 

requirement is a condition precedent to suing the public entity”].) 

Weischadle challenges this aspect of the court’s ruling, 

pointing to her exhibit 38 “notice of claim,” dated March 19, 2020, 

a little less than two weeks before she filed the case at bar. The 

court excluded that exhibit for lack of authentication. Although 

Weischadle asserted in the trial court she would authenticate her 

exhibits during discovery, she provided no information as to how 

she intended to cure the defect or, at least as to exhibit 38, why 

additional discovery was necessary for her to authenticate her 

own notice of claim.7 Weischadle’s reliance in her appellate brief 

on California Rules of Court, rule 8.124(g), to cure the 

evidentiary defect is misplaced. 8 

7 While the party opposing a special motion to strike may 

rely on potentially admissible evidence even though not 

presented in admissible form (see Sweetwater Union High School 

Dist. v. Gilbane Building Co., supra, 6 Cal.5th at p. 949), if the 

moving party objects, it is the responsibility of the opposing party 

to cure the evidentiary defect or to demonstrate it is curable. 

(Ibid.) Weischadle failed to do either. 

8 California Rules of Court, rule 8.124(g), provides, “Filing an 

appendix constitutes a representation that the appendix consists 

of accurate copies of documents in the superior court file.” 
20

Moreover, even if exhibit 38 constituted a proper 

government claim under Government Code section 910 for 

purposes of the City’s motion, Weischadle failed to demonstrate 

any exceptions to the City’s statutory immunities. (See State 

ex rel Dept. of California Highway Patrol v. Superior Court (2015) 

60 Cal.4th 1002, 1009 [“a public entity is not liable [for an injury] 

‘[e]xcept as otherwise provided by statute,’” citing Gov. Code,

§ 815, subd. (a)].) The City is absolutely immune from liability 

for misrepresentations, whether negligent or intentional (Gov. 

Code, § 818.8), necessarily defeating Weischadle’s claims the City 

committed fraud when it represented in discovery responses the 

surveillance footage had been destroyed as a matter of airport 

policy or told her it did not know the identities of the TSA 

personnel. (See Finch Aerospace Corp. v. City of San Diego (2017) 

8 Cal.App.5th 1248, 1252-1253 [public entity immunized under 

Government Code section 818.8 for causes of action for fraud and 

deceit, including fraudulent concealment; while public employee 

may be liable for fraud under certain circumstances under 

Government Code section 822.2, public entity is absolutely

immune].)9 As for Weischadle’s claims unrelated to fraud or 

Although this rule makes clear records submitted to the trial 

court need not be independently authenticated in the appellate 

court, Weischadle’s authentication failure occurred in the trial 

court. 

9 Weischadle’s spoliation claim also fails because there is no 

tort liability for spoliation of evidence when, as here, the victim 

learns about the spoliation prior to trial. (See Cedars-Sinai 

Medical Center v. Superior Court (1998) 18 Cal.4th 1, 17-18 [“[w]e 

hold that there is no tort remedy for the intentional spoliation of 

evidence by a party to the cause of action to which the spoliated 
21

deceit (negligence, defamation and intentional infliction of 

emotional distress), although Government Code section 815.4

allows liability to be imposed on a public entity for the tortious 

acts of independent contractors, as discussed Weischadle

provided no evidence the Charboneau defendants committed any 

tortious acts.

5. The Court Did Not Err in Granting the City’s and the 

Charboneau Defendants’ Motions for Attorney Fees

Subject to certain exceptions not pertinent here, a 

prevailing defendant on a special motion to strike is entitled to 

recover his or her attorney’s fees and costs. (§ 425.16, 

subd. (c)(1).)10 Weischadle’s challenge to the court’s attorney fee 

orders is based entirely on her contention the court erred in 

granting the special motions to strike. In light of our holding the 

court did not err in granting those motions, we similarly reject 

Weischadle’s challenge to the attorney fee orders. 

evidence is relevant, in cases in which, as here, the spoliation 

victim knows or should have known of the alleged spoliation 

before the trial or other decision on the merits of the underlying 

action”].)

10 When, as here, the challenge to the court’s ruling is 

directed to the statutory entitlement to attorney fees, and not the 

amount, our review of that legal issue is de novo. (Monster 

Energy Co. v. Schechter, supra, 7 Cal.5th at p. 788; Ellis Law 

Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 

230 Cal.App.4th 244, 252-253.) 
22

DISPOSITION

The trial court’s orders granting the City’s and the 

Charboneau defendants’ special motions to strike and the orders 

awarding attorney fees are affirmed. The City and the 

Charboneau defendants are to recover their costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J.

WISE, J.



Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.